OF APPLES AND ORANGES (AND HORMONES IN BEEF): SCIENCE AND THE STANDARD OF REVIEW IN WTO DISPUTES UNDER THE SPS AGREEMENT

Abstract

AbstractThe standard of review applied by WTO decision-makers in disputes under the Sanitary and Phytosanitary (SPS) Measures Agreement plays a critical role in determining the scope of SPS risk regulatory authority afforded WTO Members by governing the degree to which such measures must be science-based. The standard of review question in SPS jurisprudence finds resonances in international environmental legal adjudication of highly technical disputes, as well as in comparative law concerning judicial review of science-based risk regulation in the United States and European Union. This article considers recent case law of the WTO Appellate Body in Continued Suspension and Australia–Apples and the extent to which these decisions permit a more deferential approach on the part of WTO decision-makers in evaluating the scientific underpinnings of Members' disputed SPS measures. It is argued that the case law has failed to articulate a strong normative rationale for the current interpretation of the standard of review applied in SPS disputes. Drawing on social scientific findings regarding the limitations of science-based risk assessment in diverse risk settings, the article contends that a more coherent and principled approach to application of the standard of review would allow for its adjustment according to the nature of the risk situation under consideration.